"Didn’t realise cheering for a particular team was against the law?"
This question, tweeted by tennis legend Martina Navratilova, basically sums up the recent controversy over people being booked and arrested by the police in Kashmir and Agra for allegedly celebrating Pakistan's win over India in the cricket T20 World Cup on 24 October.
Two FIRs have been registered in Srinagar against students and the management of the Sher-i-Kashmir Institute of Medical Sciences (SKIMS) and the Government Medical College, after videos emerged of students there allegedly celebrating by shouting slogans and bursting firecrackers.
The FIRs include not just offences under the IPC (Section 505 - public mischief) but also under the dreaded Unlawful Activities (Prevention) Act or UAPA (Section 13 - unlawful activities).
In Agra, three Kashmiri students of Raja Balwant Singh Engineering Technical College were arrested by the police for allegedly raising pro-Pakistan slogans and putting up a WhatsApp status celebrating their win in the match.
The three students have been booked for sedition (Section 124A, IPC) and been sent to 14 days' judicial custody. Local lawyer associations have said no lawyer will represent them as they committed anti-national activities, even as the college administration clarified that they never raised any slogans.
On the day they were produced in court and remanded to custody, UP Chief Minister Yogi Adityanath said that those who celebrate Pakistan's win will be booked for sedition.
As the families of the students in Agra begin a desperate battle to secure their release and just get them legal counsel (a Mathura lawyer eventually agreed to represent them despite the local interdict), and the students in Srinagar contemplate the seriousness of UAPA charges, it is worth noting that these actions by the J&K and UP Police are blatantly illegal.
This is because, as Navratilova pithily pointed out, there is no law which criminalises supporting a different team in a sports match, despite what Yogi Adityanath and the many other outraged people in this country think.
Groundhog Day: Sedition Edition (Part Infinitum)
This is not the first time that sedition has been invoked against people for celebrating a Pakistan cricket win.
In 2014, 67 Kashmiri students in Meerut, UP, were arrested for sedition after Pakistan defeated India in the Asia Cup. The case was subsequently dropped after a legal opinion was sought.
In 2017, following another Pakistan cricket win over India, 49 people were booked for sedition across UP, Madhya Pradesh, Kerala and Karnataka for alleged celebrations, 29 of whom were arrested. These cases were also dropped over the next few months.
Indian governments, particularly those where the BJP is in charge, have in recent years been very willing to slap sedition charges against people on the flimsiest of grounds, from journalists like Vinod Dua and Kishorechandra Wangkhem's critical comments about BJP politicians, to climate activist Disha Ravi's alleged involvement with a toolkit on the farmers' protests.
The National Crime Records Bureau's (NCRB) data shows that sedition cases increased by 165 percent from 2016 to 2019, with the maximum number of these cases either in BJP-ruled states like Karnataka, Assam and UP, as well as Jammu and Kashmir, which has been under central government rule since 2018.
Yogi Adityanath has even earlier made dubious claims about what constitutes sedition. In January 2020, he warned those protesting against the controversial Citizenship Amendment Act (CAA) that if they raise slogans of ‘Azadi’, it would lead to sedition cases against them.
All of this ignores what the Supreme Court has said about the offence of sedition.
Section 124A of the IPC punishes those who attempt to cause hatred, contempt, or disaffection towards the “Government established by law in India”.
It was was added to the IPC in 1870 by the British colonial government to punish dissenters, eventually being used against freedom fighters like Bal Gangadhar Tilak and even Mahatma Gandhi. But even as the British government widened the scope of Section 124A to include any criticism of it, cheering another team in a cricket match would probably never have fallen within its ambit.
In 1962, the Supreme Court had to decide whether this colonial-era offence was constitutional. While it did hold that the offence was constitutional in the landmark Kedar Nath Singh judgment, it clarified the scope of the offence so that it would fit within the parameters of Article 19(2) of the Constitution, which sets out the reasonable restrictions on freedom of speech.
The judges clarified that for speech to become seditious, it needed to incite “public disorder by acts of violence”. They reiterated this several times, making it clear that without a connection to some form of violent public disorder, the offence of sedition would not be attracted.
Sedition is not one of the grounds in Article 19(2) under which freedom of speech can be restricted. This was a deliberate decision, as previous drafts of this clause included sedition as such a ground, before it was removed in the final version.
Therefore, for something to amount to an offence under Section 124A, it had to rise to the level of one of the other grounds for restrictions, in this case, public order. It is through this lens that any attempt to bring a sedition case has to be looked at – and celebrating Pakistan's cricket win certainly doesn't fit the bill.
Even shouting pro-Pakistan slogans would not amount to sedition. In the 1995 Balwant Singh case, the Supreme Court held that casually raising 'Khalistan Zindabad' slogans would not satisfy the threshold for the offence as specified in Kedar Nath Singh:
“Keeping in view the prosecution evidence that the slogans as noticed above were raised a couple of times only by the appellant and that neither the slogans evoked a response from any other person of the Sikh community or reaction from people of other communities, we find it difficult to hold that, upon the raising of such casual slogans, a couple of times without any other act whatsoever, the charge of sedition can be founded.”Supreme Court in Balwant Singh case
The court was very clear, that for the raising of slogans to amount to sedition, there had to be some effect to this, there had to be some disturbance or some violence that actually arose out of such sloganeering.
It’s not even about the intent or whether such slogans could lead to violence – there actually has to be some violence for sedition to be attracted.
Speaking to The Quint in 2017, the late Soli Sorabjee, one of the doyens of the Indian bar and former Solicitor General, had strongly disapproved of sedition charges for cricket celebrations. He explained that that the offence is only complete if the words or actions of the accused have a tendency of creating public disorder by violence – this also has to be public disorder with the government as its target.
The case in Agra against the Kashmiri students there is therefore a clear misuse of the law, and the case should be quashed or dropped at the earliest to prevent a miscarriage of justice.
UAPA Charge is Also Unjustified
In addition to sedition charges, another recent trend has been an increase in cases under the UAPA. Answers by the Ministry of Home Affairs in the Lok Sabha shows that there was a 72 percent increase in UAPA cases from 2015 to 2019, with a 37 percent jump between 2018 and 2019.
Since 2019, in Jammu and Kashmir alone, 2,300 people have been booked under the UAPA, 1,100 of whom are still in custody.
The FIRs in the Kashmir cases invoke Section 13 of the UAPA, which deals with 'unlawful activities'.
“Unlawful activity” is defined in the UAPA as referring to any action that supports or is intended to support secession of any part of India, or “disclaims, questions, disrupts or is intended to disrupt” the sovereignty and territorial integrity of India.
The FIRs do not at this point include terror-related offences under the UAPA, which would have made it extremely difficult for the accused to get bail once arrested.
As lawyer and legal scholar Gautam Bhatia has previously pointed out in The Hindu, the definition of unlawful activities includes terms which are “staggeringly vague and broad”.
Despite this, celebrating a win by Pakistan in a cricket match cannot be said to fall within this definition.
This is because once again, as the Supreme Court did with sedition in Kedar Nath Singh, the offence has to be understood through the lens of the reasonable restrictions in Article 19(2).
Even if the support for Pakistan is viewed as secessionist or somehow otherwise brought within the definition of 'unlawful activity' (which itself stretches interpretation), it has to then incite "public disorder by acts of violence".
Remember also that a public order offence is not the same as a law and order offence, as the Supreme Court has firmly held in cases in the past such as the Ram Manohar Lohia judgment in 1965 and the Anuradha Bhasin judgment on restrictions in Kashmir in January 2020.
While the police may be able to say that public celebrations by some people in favour of Pakistan could provoke trouble with others, this would normally only classify as a law and order problem, unless the violence escalates and becomes a serious threat to the city.
Which did not happen in the Srinagar cases.
It should be clear therefore that while one may find these celebrations offensive or in bad taste, this does not justify criminal action against those who celebrate a Pakistan cricket win.
This is a matter of sporting preference (for whatever reason), not a question of territorial sovereignty, or a justification of Pakistan's attacks on India. One is free to criticise those who express this preference, but it is neither sedition nor a UAPA offence, nor any criminal offence for that matter.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)